Freeman v. Dayton Scale Co.

• Decision Date: 19 July 1929
• Citation: 19 S.W.2d 255,159 Tenn. 413
• Parties: FREEMAN v. DAYTON SCALE CO.
• Court: Tennessee Supreme Court

19 S.W.2d 255

159 Tenn. 413

FREEMAN v. DAYTON SCALE CO.

Supreme Court of Tennessee.

July 19, 1929

Error to Circuit Court, Davidson County; A. G. Rutherford, Judge.

Suit by C. D. Freeman against the Dayton Scale Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Thos G. Watkins, of Nashville, for plaintiff in error.

Manier & Crouch and Andrew Ewing, all of Nashville, for defendant in error.

CHAMBLISS J.

This is a suit for libel. A demurrer to the declaration was sustained, and plaintiff has appealed. It appears from the declaration, and a letter made exhibit thereto, in the course of which the libelous matter appears, that plaintiff had formerly been an employee of defendant, and had brought suit represented by Thomas G. Watkins, Esq., as his attorney, for a balance alleged to be due plaintiff; that plaintiff's said attorney had written defendant, setting out the claim of his client, and that the letter containing the libelous matter was a part of the correspondence passing between an agent of the defendant corporation and the attorney for plaintiff touching this disputed matter. The demurrer raised the question of publication, on the theory that the declaration fails to show communication of the libelous matter, except to the attorney for plaintiff in a letter explaining the claims of defendant in response to the demands of plaintiff made through said attorney as his agent and representative.

Counsel for plaintiff say, first, that publication arises when libelous matter is communicated in a letter written to, and opened and read by, an attorney of the libeled party; and second, publication arises whenever libelous matter is dictated to a stenographer and transcribed and mailed; and that dictation to a stenographer sufficiently appears from the fact that the letter, filed with the declaration as an exhibit, shows on the left-hand corner of the last page "C-K."

This being a civil and not a criminal suit for libel, it is essential that there be publication; that is, a communication of the defamatory matter to a third person. This is so for the reason that the gravamen of the act is the pecuniary damage to the character or credit of the party libeled. No such damage can arise, of course, without publication. The authorities are in conflict as to whether or not such publication takes place when the communication takes the form of a letter written to the attorney representing the party libeled, standing instead of, and acting for, the party himself, in response to a demand, and in the course of, and connected with, an explanatory reply. The weight of the more recent authorities, supported, we think, by reason, is against liability in such a case, upon the ground both that such a communication is privileged, and also that there is no publication in the required sense.

This view seems to rest partly on the theory that the attorney is the chosen agent of the party libeled, selected by him to stand in his stead, and to receive on his behalf any such communication as may pass between the parties to the controversy; and partly on the theory that a communication addressed to a third party, procured to be so addressed by the party libeled, does not amount to a publication. An illustration of the class of cases holding to this latter view is our case of Kansas City M. & B. R. Co. v. Delaney, 102 Tenn. 289, 52 S.W. 151, 45 L. R. A. 600; holding that the delivery of a letter of recommendation, which proved to contain matter alleged to be libelous, of a former employee to a person who, by his authority, requested it, is not a publishing of any libel contained in it.

In Dickinson v. Hathaway, 122 La. 644, 48 So. 136, 21 L. R. A. (N. S.) 33, dealing with correspondence with attorneys for the plaintiff, among other things, the court said: "We have gone a step further and considered the relation of attorneys to their client. They represented the plaintiff. Instead of writing himself, he left it to his attorneys. The answer to the attorneys related exclusively to their demand. It was the same as if the letter had been addressed to the plaintiff. It was, therefore, privileged."

In Wells v. Belstrat Hotel Corporation, 212 A.D. 366, 208 N.Y.S. 625, the Appellate Division of the Supreme Court of New York, finding that the alleged libelous letter was written in answer to a request from the attorney for the plaintiff, approved the holding in Dickinson v. Hathaway, supra, and held that a letter written to the attorney of the plaintiff was not libelous, because the same was not published, that a private letter, answering plaintiff's attorney, and relating to a matter in which the parties were concerned, would not support an action for damages for libel. This holding was followed in the case of Schinzel v. Vuyk, 126 Misc. 202, 213 N.Y.S. 135.

In 17 R. C. L. 320, it is said to be "generally held that the publication of a libel or slander invited or procured by the plaintiff is not sufficient to support an action for defamation," and in the same section it is said that a private letter written by a person charged with libel, and addressed directly to the attorneys of the plaintiff in regard to a claim asserted by the latter against the writer, and placed in the hands of the plaintiff's attorney for adjustment, has not been published, in the sense of the law of libel.

We are of opinion that this view is sound on principle. The confidential relationship in which an attorney stands to his client is well recognized. The essence of publication being the giving out to the public of the matter, it would seem clear that, when one goes no further than to communicate the matter to the confidential attorney of another, he has not been guilty of doing that which might reasonably be...